A week (so far) without a new disclosure, quotable, and from the archives. It is all here in the Friday roundup.
Is It Possible?
Granted the week is not yet over, but thus far this week there has not been a new FCPA disclosure. The past three weeks, I have (somewhat tongue in cheek) noted – what seems like – new FCPA related disclosures every week. See here and here for prior posts.
While not a new FCPA disclosure, Total S.A. did indicate as follows in a recent Form 6-K filing.
“In 2003, the United States Securities and Exchange Commission (SEC) followed by the Department of Justice (DoJ) issued a formal order directing an investigation in connection with the pursuit of business in Iran, by certain oil companies including, among others, TOTAL. The inquiry concerns an agreement concluded by the Company with a consultant concerning a gas field in Iran and aims to verify whether certain payments made under this agreement would have benefited Iranian officials in violation of the Foreign Corrupt Practices Act (FCPA) and the Company’s accounting obligations. Investigations are still pending and the Company is cooperating with the SEC and the DoJ. In 2010, the Company opened talks with U.S. authorities, without any acknowledgement of facts, to consider an out-of-court settlement as it is often the case in this kind of proceeding. Late in 2011, the SEC and the DoJ proposed to TOTAL out-of-court settlements that would close their inquiries, in exchange for TOTAL’s committing to a number of obligations and paying fines. As TOTAL was unable to agree to several substantial elements of the proposal, the Company is continuing discussions with the U.S. authorities. The Company is free not to accept an out-of-court settlement solution, in which case it would be exposed to the risk of prosecution in the United States.”
A collection of recent statements by DOJ officials concerning its recent trial setbacks and the future of FCPA enforcement.
See here from Reuters quoting Charles Duross (DOJ FCPA Unit Chief) as saying. “I know there is a lot of commentary out there about what this portends for the FCPA program, the use of certain law enforcement techniques. I would caution everybody not to draw too much from that. In terms of pursuing cases moving forward, I don’t think a lot is going to change.”
See here from Wall Street Journal Corruption Currents quoting Nathaniel Edmonds (DOJ) as saying – “the Department of Justice is going to continue to fight corruption, we’re committed to it, and we’re in it for the long haul.”
See here from the Blog of Legal Times quoting Edmonds as saying – FCPA violations are “not a regulatory offense. It’s a criminal violation. You cannot assume it’s a cost of doing business. People go to jail…it’s not just a regulatory fine.” The Blog of Legal Times also quotes Kara Brockmeyer (SEC FCPA Unit Chief) as saying “you can never stamp out someone who wants to pay a bribe somewhere … but if a company has strong internal controls, they can find the problem and fix it quickly.”
Meanwhile, Brockmeyer’s predecessor, Cheryl Scarboro (who left the SEC for private practice last summer – see here for the prior post) said in this recent Q&A with Trustlaw as follows. “There hasn’t been much litigation in this area and so if a particular area of a statute is open to interpretation, then typically the DOJ or the SEC will interpret it themselves and those are in the settled context.” After referencing the recent foreign official challenges, Scarboro states as follows. “But I think that it is correct (to say) that there is very little guidance as it relates to decided court cases in this area and that it leaves certain key areas open to interpretation.” Scarboro also recently co-authored a Law360 article (here) titled “Mounting Pressure for FCPA Reform.”
From the Archives
It was inappropriate when issued on January 26, 2010. Looking back it perhaps foreshadowed future difficulties. It is the FBI’s press release in the Africa Sting case (see here). It states that the “ruse played out with all the intrigue of a spy novel” and then on January 18, 2010 “we arrested them.” The release closed as follows. “You never know, that individual willing to take a bribe may really be an undercover FBI agent.” For the rest of the story, see this recent story in the Washington Post.